New Judgment: Smith & Ors v Secretary of State for Defence; and two other cases [2013] UKSC 41

These proceedings concern three sets of claims which arise out of the deaths of three young British servicemen and the serious injuries of two other young British servicemen in Iraq. The first set (“the Challenger claims”) arise from a “friendly fire” incident involving British tanks. The second set (“the Snatch Land Rover claims”) arise from the deaths caused by the detonation of improvised explosive devices level with the Snatch Land Rovers in which the soldiers were travelling. The third (“the Ellis negligence claim”) is based on various alleged failures on the part of the MoD.

The following issues were before the Supreme Court: In relation to the Snatch Land Rover claims, whether at the time of their deaths, the two British servicemen were within the jurisdiction of the UK for the purposes of the ECHR. If they were, whether – and if so, the extent to which – ECHR, art 2 imposed positive obligations on the UK with a view to preventing the deaths of its own soldiers in active operations against the enemy. In relation to the Challenger claims and the Ellis negligence claim, whether the allegations of negligence should be struck out because they fell within the scope of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances.

Held, in relation to the Snatch Landrover claims, the Supreme Court overturned its earlier judgment on the issue in R (Catherine Smith) v MoD [2011] 1 AC 1, holding unanimously that soldiers were under the personal jurisdiction of the UK at all times when serving out of the UK by virtue of the fact that the UK exercised full authority and control over them. It further held by a majority that the question of whether a positive obligation to protect their lives had been breached required examination of the facts and that neither combat immunity, public policy or non-justiciability precluded a duty of care existing as a matter of principle.

In relation to the Challenger and Ellis negligence claims, the Supreme Court by a majority rejected the MoD’s arguments that the claims should be struck out, allowing the claims to proceed. The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy.